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2015 DIGILAW 1542 (MAD)

R. Mohamed Ibrahim v. C. Chandra

2015-03-19

K.KALYANASUNDARAM

body2015
Judgment :- 1. This revision is directed against the order passed by the VIII Judge, Court of Small Causes, Chennai confirming the order of the Rent Controller (XII Judge, Court of Small Causes, Chennai) in RCOP No.14 of 2010. 2. The revision petitioner is the tenant. The respondent/landlady initiated eviction proceedings against the petitioner under Sections 10 (2) (ii) (b), 10 (2) (iii) and 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The case of the landlady is that the tenant was inducted on a monthly rent of Rs.2850/- for running a laundry shop. But, all of a sudden, without any oral or written consent of the landlady, the tenant converted the business into a Auto re-sale by making structural alternations; that the tenant is now carrying on two-wheeler re-sale business instead of laundry business which is against the purpose for which it was let out. 3. The landlady has further alleged that the tenant, without her consent has removed the big teak wood door and installed rolling shutter altering the floors and walls, that the tenant has illegally opened the door to the terrace portion and fixed the angles by damaging the walls, that the act of the tenant would amount to act of waste which will impair materially the value and utility of the tenanted premises. It is further averred that her son C.R.Chandrasekar is running a medical shop in a rented premiss at No.43, Raghavan Street, Perambur, Chennai and she is not owning any other premises in the city of Chennai and hence she requires the tenanted premises for the use and occupation of her son. 4. The eviction petition was resisted by the tenant stating that he was regularly paying monthly rent to the landlady and he is in possession of the shop for more than eight years, that only after getting oral permission from the landlady, he is doing auto re-sale business to supplement his income from the laundry business, that the rental agreement does not prohibit him from using the petition shop for business of his choice. It is further averred that the tenant has not done any illegal act or damaging act or other acts of waste so as to impair the material value and utility of the petition shop, that the requirement of the petition shop by the landlady is not bonafide and that the eviction petition was filed since the tenant refused to pay the enhanced rent demanded by the landlady at Rs.10,000/- per month and prayed for dismissal of the eviction petition. 5. Before the Rent Controller, the landlady examined one C.R.Rajagopal as PW1 and her son Chandrasekar as PW2 and marked Exs.P1 to P19. The tenant examined himself as RW1 and marked Exs.R1 to R9. The Rent Controller, after considering the oral and documentary evidence ordered eviction on the ground of different user, act of waste and owner's occupation. Aggrieved by the order of the Rent Controller, the tenant preferred an appeal in RCA No.720 of 2011. The Appellate Authority, while confirming the order of eviction on the ground of different user, own use & occupation, rejected the ground of act of waste. Challenging the order, the present revision has been filed. 6. Mr.S.I.Samiullah, learned counsel for the petitioner submitted that the eviction petition itself was filed with an oblique motive to vacate the tenant and the grounds alleged by the landlady was not proved according to law. It is further submitted that the lease agreement does not prohibit the tenant to carry on auto re-sale business and so as per the decision reported in 2005 ($) CTC 694 [Hari Rao v. N.Govindacharai and others], the eviction ordered on the ground of different user cannot be sustained. 7. The learned counsel further submitted that the case of the landlady that her son was carrying on business in a rented premises was not established and the land owner of the landlady's son was not examined as a witness to substantiate their case. It is further contended that the landlady has created documents Exs.P14 to 18 to make a false claim of requirement of the building for own use & occupation. 8. In the case on hand, the specific case of the landlady is that her son C.R.Chandrasekar is presently running a medical shop in a rented premises at No.43, Raghavan Street, Perambur, Chennai. To substantiate her claim, the landlady has examined her son as PW2 and marked Exs.P14 to P18. 8. In the case on hand, the specific case of the landlady is that her son C.R.Chandrasekar is presently running a medical shop in a rented premises at No.43, Raghavan Street, Perambur, Chennai. To substantiate her claim, the landlady has examined her son as PW2 and marked Exs.P14 to P18. Ex.P14 is the license issued to run the medical shop in favour of PW2. Ex.P15 is the lease agreement entered into between by the landlady's son with his landlord on 02.05.2002. Ex.P16 are series of bills and Ex.P17 is cash bill book. Exs.P14 to P17 would prove that PW2, the son of the landlady is running a medical shop in a rented premises at Door No.43, Raghavan Street, Perambur, Chennai. The Rent Controller, relying on the above oral and documentary evidence held that the landlady requires the tenanted premises for business of her son. The Appellate Authority on independently considering the entire material evidence, confirmed the findings of the Rent Controller. Hence, I am of the view that the landlady is entitled for the order of eviction on the ground of own use & occupation. 9. In the judgment reported in 2005 ($) CTC 694 [Hari Rao v. N.Govindacharai and others] cited supra, the Hon'ble Apex Court has held as follows - 7. Learned counsel for the landlord placed considerable reliance Anr.[ (2000) 3 SCC 723 ]. That case also arose under Section 10 (2) (ii) (b) of the Act. The transaction between the parties was governed by a lease deed. The tenant covenanted that the premises, "shall be used by the tenant for carrying on his own business and the tenant shall not carry on any other business than the above said business." The business intended was dealing in radios, cycles, fans, clocks and steel furniture. Subsequently, the tenant also started a trade in provisions (spices and dals etc.). The landlord sought eviction and the courts below ordered eviction under Section 10 (2) (ii) (b) of the Act. The tenant had appealed to this Court. This Court referred to the earlier decisions of this Court including 2 SCC 290]. It also referred to Section 108 (o) of the Transfer of Property Act. The landlord sought eviction and the courts below ordered eviction under Section 10 (2) (ii) (b) of the Act. The tenant had appealed to this Court. This Court referred to the earlier decisions of this Court including 2 SCC 290]. It also referred to Section 108 (o) of the Transfer of Property Act. This Court distinguished the various decisions brought to its notice under other sister enactments and took the view that the covenant in the rent deed not to use the premises for any purpose, other than the one referred to in the rent deed, brought the user by the tenant within the mischief of Section 10 (2) (ii) (b) of the Act and, therefore, the order for eviction was justified. With respect, as we see it, their Lordships rested their decision on the existence of the negative covenant in the lease deed and on the view that a breach of that covenant, would attract Section 10 (2) (ii) (b) of the Act, and make the user, one coming within the mischief of that provision. In this case, as observed, there is no covenant as the one involved in Arul Jothi's case. In M.K. Palaniappa Chettiar continuing the business for which the building was taken on rent, was using a negligible portion of the building for the purpose of cooking. This Court held that the High Court was in error in reversing the decision of the Rent Controller and the Appellate Authority to the effect that no ground for eviction under Section 10 (2) (ii) (b) of the Act was made out. Bhagwan ( 1988 (3) SCR 345 ), this Court, interpreting the corresponding provision in Haryana Urban (Control of Rent & Eviction) Act, 1973, held that when a tenant who had taken a building on lease for the purpose of running a business in liquor, converted the business into that of general merchandise, in the absence of a negative covenant, the user did not amount to user for a purpose other than that for which the building was Kumar Jain ( 1989 (3) SCR 423 ), where the premises was let out for repairing business and the tenant along with the repairing business, also carried on sale of television sets for a while. This Court held that there was no change of user which would attract the liability for eviction under the corresponding provision of the East Punjab Urban Rent Restriction Act, 1949. It was clearly stated that the concept of injury to the premises which forms the foundation of Section 108 (o) of the Transfer of Property Act is the main basis for a provision similar to the one in Section 10 (2) (ii) (b) of the Act. We think that the case on hand is governed by the principles recognized in the latter decisions and the ratio of the decision in Arul Jothi has no application in the absence of a negative covenant as the one obtaining in that case. Dashrath Baburao Sangale & Others where the premises was taken on rent for "sugarcane crushing with the help of an ox and for the shop thereof" and the tenant was to get constructed a temporary shed of tin-sheet for that purpose. The tenant started a cloth business in the premises. The courts below found that this was a user for a purpose other than that for which the premises was leased and this Court found no ground to interfere. This decision only re-affirms the position that everything would depend on the terms of the letting and the facts of the case. Obviously, the cloth business started, had no Jai Narain and others [1995 Supp. (4) SCC 648], shows that the user by the tenant of a building taken on rent for the purpose of running a shop (commercial), for a manufacturing purpose, would entail his eviction on the ground of change of user. The tenant, in that case, installed an Atta Chakki and an Oil Kolhu, in the shop. The case on hand is not one of that nature. In other words, in the present case, there was no change of user, from non-residential to residential or from business to manufacturing or industrial. As emphasized already, there was also no negative covenant as was available in Arul Jothi's case. In such a situation, we are satisfied that the High Court was clearly in error in interfering with the decision of the Appellate Authority that there was no change of user in the case on hand attracting Section 10 (2) (ii) (b) of the Act. In such a situation, we are satisfied that the High Court was clearly in error in interfering with the decision of the Appellate Authority that there was no change of user in the case on hand attracting Section 10 (2) (ii) (b) of the Act. Merely because a tenant, who has taken a building for the purpose of running a trade, alters the commodity in which he was trading when he took the building on lease or trades in other commodities also, he could not be held to be using the premises for a purpose other than the purpose for which it was let. The purpose has to be understood, as the purpose of trade and in the absence of a covenant barring the using of it for any other trade, it will be open to the tenant to use the premises for expanding his trade or even for taking up other lines of trade as befits a prudent trader. 10. The Rent Controller and the Appellate Authority have ordered eviction on the ground of different user. Since I have already held that the landlady is entitled to succeed for eviction on the ground of own use & occupation, this court does not go into the other grounds raised by the tenant. I do not find any perversity or illegality in the order impugned in this revision. 11. In the result, Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. However, considering the fact that the tenant has been carrying on business in the petition premises, the tenant is directed to vacate and hand over vacant possession to the landlady on or before 31.10.2015. The tenant shall continue to pay the entire arrears, if any, within two weeks from the date of receipt of copy of this order and shall continue to pay future rents regularly.